Before the former waste transfer station at this same location was closed in 1999, the Gracie Point community suffered greatly from odors, vermin and pollutants. The proposed MTS would create even more severe problems for the Gracie Point community.
How does the East 91st Street MTS fit into the City overall garbage plan?
The East 91st Street MTS would be one of four new marine transfer stations to be built in Brooklyn, Manhattan and Queens, and the only new one to be built in Manhattan. The current MTS at West 59th Street would be offered only to commercial waste haulers for export of commercial waste collected in Manhattan. Waste which would have been taken to the MTS at West 135th Street will be taken by collection trucks to a waste-to-energy plant in New Jersey instead.
A concept called “Borough sufficiency” also has been introduced. “Borough sufficiency” maintains that those who create the garbage also must take responsibility for disposing of that garbage. While sensible in theory, “Borough sufficiency” does not take into account that locations for garbage disposal need to be chosen for their suitability.
Where things stand...
New York City Council
The City Council passed a resolution on July 19th by a vote of 44-5 approving an amended version of a solid waste management plan (SWMP) that includes the proposed East 91st Street marine transfer station.
Council Member Jessica Lappin, the only member of the Sanitation and Solid Waste Management Committee of the Council to vote against the plan, and Council Member Dan Garodnick fought hard to stop the East 91st Street Marine Transfer Station from being included but were overwhelmed by the strong support for the plan in the outer boroughs. We appreciate their efforts, especially in the face of such a powerful campaign from the City administration and Council Speaker Christine Quinn to adopt the Mayor’s plan.
We also appreciate the efforts of State Senator Liz Krueger and State Assemblymen Pete Grannis and Jonathan Bing who spoke on our behalf at the June 26th community rally and Sanitation and Solid Waste Management committee hearing and who will continue to support our opposition to the plan in Albany.
New York State Department of Environmental Conservation and Army Corp of Engineers.
The New York State Department of Environmental Conservation (NYSDEC) approved the SWMP on October 27, 2006. Applications by DSNY for permits, as well as draft permits, were deemed complete on May 30, 2007. An administrative law judge from the NYSDEC Office of Hearings and Mediation conducted a legislative hearing on October 9, 2007 to hear statements from the community. That was followed by an Issues Conference on October 16 and a visit by the judge to Asphalt Green and its surroundings on October 17. The Conference was held to determine party status for any person or organization that properly filed, and to narrow and define issues that will require adjudication.
The administrative law judge for the New York State Department of Environmental Conservation issued his rulings on the permit applications for the East 91st Street marine transfer station on April 7, 2008. While he ruled that the Gracie Point petitioners are entitled to full party status, he ruled against us on all but one of our objections.
The judge said “Gracie Point argued correctly in its petition that DSNY has not shown that noise levels from the transfer station will comply with (New York environmental regulations) operational requirements. This point must be addressed through an additional submittal from DSNY, to which Gracie Point is entitled to respond. Though noise has not yet been identified as an issue requiring adjudication, it remains possible that it will be, and Gracie Point has retained a noise expert whose testimony could be helpful if adjudication is required.”
We expect to appeal the rulings against us. DSNY may also appeal the ruling on the noise level submittal. Appeals must be filed with the Assistant Commissioner for Hearings and Mediation by 4:00 PM on Friday, May 5, 2008. Any responses to appeals must be received by 4:00 PM on May 27,2008.
The draft permits contain 15 general conditions and 50 special conditions, with an additional set of 9 conditions allocated between the federal and state departments. The operating permit sets maximum peak day limit for the facility at 1,860 tons per day, with an “upset’ limit of 4,290 tons and an emergency limit of 5,280 tons. Among the special conditions in the draft permit is are a prohibition of truck queuing on public streets (except under upset and emergency conditions), a limit of 17 trucks queued on the ramp, a requirement that a staff person be at the foot of the ramp when trucks are delivering waste, a requirement that video cameras accessible to NYSDEC on a real time basis be installed to monitor queuing compliance, a requirement that all waste be containerized within 24 hours of delivery and all containers removed within 48 hours, and limit for DSNY trucks of 0.1 grams of diesel particulate for pre-2007 trucks and 0.01 grams for trucks purchased in 2007 and after.
To see the entire draft permit, CLICK HERE (PDF document),
and for Permit Special Conditions, CLICK HERE
The United States Army Corps of Engineers has not yet received an application for the permits it would have to approve. DSNY has filed a notice of intent to acquire land underwater in connection with the MTS with the New York State Office of General Services (OGS). OGS has not yet approved the acquisition.
New York State Supreme Court
There are two lawsuits against various aspects of the SWMP pending in New York State Supreme Court.
LAWSUIT #1
On October 20, 2005 Gracie Point Community Council, together with thirteen other petitioners, including the New York City chapter of the Association of Community Organizations for Reform Now (ACORN), filed a lawsuit in New York State Supreme Court to annul the City’s plans to build the East 91st Street MTS. The lawsuit states that the City’s selection of the East 91st Street site was arbitrary and capricious. It also contends that DSNY conducted an environmental review that was materially defective, that the City Planning Commission’s approval improperly relied on that defective environmental review, that the site selection was unlawful and improper, and that a new MTS at East 91st Street will create a private and public nuisance.
On September 19, 2006 the Court denied the petition to annul the City’s plans and dismissed the nuisance complaint. In its opinion, the Court said that its scope of review is limited to an assessment of whether there is a rational basis for the administrative determination without disturbing underlying factual determinations. The Court further stated that the public policy choices and the advisability of the City’s decisions respecting location of all the MTS’s and rezoning of areas near the MTS site for high-density residential development and commercial zoning are beyond the permissible scope of judicial review. The Court concluded by saying it was rational for the City to have selected the existing East 91st Street MTS as the site of the proposed facility. In reaching that conclusion, the Court accepted the City’s representations that the location offers operational convenience for transferring waste collected in the area, that no rezoning of the site is required, and using an existing City owned property is more cost effective that the alternative of purchasing or condemning waterfront property elsewhere for a containerization facility.
As to the nuisance complaint, the Court said that while the City is not immune to liability for public and private nuisances, our cause of action is barred because DSNY either has found no significant adverse environmental impacts that will result from the MTS, or has implemented measures mitigating significant impacts.
We have appealed the Court's decision and an oral argument on the appeal was held on February 13, 2008 in the Appellate Division, First Department. It will be three to six weeks before we know whether the Appellate Division affirms the Supreme Court decision.
LAWSUIT #2
On June 13, 2006, six plaintiffs from Harlem and the Gracie Point and Yorkville neighborhoods filed a lawsuit in New York State Supreme Court. This lawsuit asserts that the City’s garbage plan violates a 1913 state statute and the common law Public Trust Doctrine, both of which protect public parklands from being used for non-park uses. The complaint and petition alleges that the proposed demolition and reconstruction of the 91st Street marine transfer station and access ramp, and the operation of the station, constitute an alienation of the Asphalt Green and Bobby Wagner Walk parklands, requiring the approval of the state legislature.
On June 21, 2007 the court rejected the City's move to dismiss the suit and ruled that it may go forward to a hearing on the merits. On a separate issue the court rejected our argument that the City's environmental impact statement did not take a 'hard look' at the impact of construction of the MTS on Asphalt Green.
We are conducting discovery from the City through December, 2007. Further hearings are not expected until early 2008.
Our sincere thanks to State Senator Liz Krueger and Assemblyman Pete Grannis for sending a letter to Governor George Pataki that was a predicate to this lawsuit. We also thank State Assemblyman Adam Clayton Powell IV for agreeing to be a plaintiff in the lawsuit, and State Assemblyman Jonathan Bing for sending a letter to Governor Pataki supporting Senator Krueger and Assemblyman Grannis.
To review the DEIS and SWMP go to the Community Board 8 office at 520 Park Avenue, Suite 620, or to the New York Regional Public Library at 112 East 96th Street.
TO WIN THIS FIGHT WE CONTINUE TO NEED THE PARTICIPATION OF THE ENTIRE UPPER EAST SIDE COMMUNITY AND WE NEED IT ON AN ONGOING BASIS!
Watch the NEWS and NEWSLETTER sections of the Gracie Point Community Council web site for further announcements.
STOP THE GARBAGE! 
